Ministry of Environment and Climate Change Expert Panel for the Review of Environmental Assessment Processes Consider the Role of ITK in Environmental Assessments

Ministry of Environment and Climate Change Expert Panel for the Review of Environmental Assessment Processes Consider the Role of ITK in Environmental Assessments

In September 2016, the federal Minister of Environment and Climate Change established an Expert Panel for the Review of Environmental Assessment Processesto re-evaluate Canada’s environmental assessment framework. One of the Panel’s Terms of Reference states that “the Government of Canada fully supports the principles of the United Nations Declaration on the Rights of Indigenous Peoples, with the goal of renewing its relationship with Indigenous people in Canada and moving towards reconciliation.” In keeping with this pledge, the Expert Panel has adopted an Indigenous Engagement Plan that will guide the interactions between the Panel and Indigenous nations, organizations, and individuals moving forward.

Since its inception, the Expert Panel has been travelling Canada engaging with Indigenous peoples, key stakeholders, and all Canadians, collecting input with which to analyze the federal environmental assessment process for industrial projects. The Expert Panel most recently met in Goose Bay, Newfoundland and Labrador, on October 6 and 7, 2016 for discussions and presentations from representatives of local Indigenous nations. The Panel released a summary presenting the comments and inputs received through this engagement session.

One of the recommendations made to the Panel in these discussions focused on the role that Indigenous Traditional Knowledge (ITK) should play in environmental assessments of industrial projects. Participants pointed out that much of the existing language in the relevant legislation makes incorporating ITK an optional exercise; for example, s. 19(3) of the Canadian Environmental Assessment Act states that “[t]he environmental assessment of a designated project may take into account community knowledge and Aboriginal traditional knowledge” (emphasis added). Participants at the consultation stressed that this should be replaced with stronger language that mandates the inclusion of ITK. In addition, this statutory change would:

Signal greater support and respect for the importance of ITK,

Broaden the scope of ITK considered in environmental assessments,

Contribute to a more consistently serious and exhaustive consideration of ITK, and

Create a mandate for adequately funding the consideration of ITK in EA.

Concerns were also raised by local Indigenous communities about to the duty to consult. As the law in Canada currently stands, proponents of resource extraction projects do not have an independent duty to consult with Indigenous peoples potentially affected by a project; this legal obligation lies with the federal/provincial Crown alone. Mandatory consideration of ITK in an EA would force stakeholders in the private sector to more directly engage with their Indigenous counterparts, increasing input from Indigenous nations, communities and peoples and strengthening the overall consultation process.

In addition, requiring that Federal funding be made available to aid Indigenous and local communities in the mapping and documentation of their TK is one simple and direct way to build the capacity of Indigenous nations to respond to project applications. Without adequate support for this process, many communities may not have the resources to meet or communicate with project proponents on equal terms. The financial burden should not fall to holders of ITK if consultation is mandatory because Indigenous peoples should not be forced to “pay” to have their interests considered in EAs.

While the Government of Canada continues to speak positively about these consultation sessions, further comment will be reserved until after The Expert Panel submits their final report to the Minister of Environment and Climate Change by March 31, 2017.

Andrea Lesperance is a Research Assistant with ABS Canada. Andrea is currently completing her Juris Doctor at the University of Ottawa’s Faculty of Law. In 2014, Andrea graduated from the University of Windsor’s Faculty of Earth and Environmental Science with Honours. She has focused her academic scholarship on contemporary Indigenous issues and resource management. Andrea previously worked in community development within South African townships.